R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: JULY 24, 2009
Surinder Pal Singh and another
.....Petitioners
VERSUS
The Financial Commissioner (Appeals-II), Chandigarh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Sumeet Mahajan, Sr.Advocate with
Mr. Dinesh Ghai, Advocate,
for the applicant-petitioners.
****
RANJIT SINGH, J.
The petitioners have filed this review application to seek
review of order passed by this Court on 15.4.2009, dismissing their
writ petition in limine. The order under challenge in the writ petition
was dated 31.8.2006 passed by the Financial Commissioner
(Appeals), Punjab. Gram Panchayat, Hussainpura, had filed a R.O.R
before the Financial Commissioner to impugn the order passed by
the Commissioner, who had, in turn, set-aside the finding given by
the Collector and had upheld the order passed by Assistant
Collector IInd Grade. Assistant Collector IInd Grade in fact had
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 2 }:
sanctioned the mutation Nos.276 and 278 on 16.3.1998. This order
was challenged by the Gram Panchayat on the ground that
Smt.Malkiat Kaur had already died and Surinder Pal and Jagtar
Singh, petitioners, had fraudulently shown that the property was
purchased from Smt. Malkiat Kaur. The petitioners could neither
produced original parchi nor the sale deed before the Collector. He
accordingly held that the transaction of sale was a bogus transaction
and an attempt to usurp the Panchayat land. The Collector
accordingly rejected both the mutations through his order dated
18.6.2001. The Commissioner set-aside the order passed by the
Collector and upheld the order passed by Assistant Collector IInd
Grade. This order passed by the Commissioner was under challenge
before the Financial Commissioner, who set-aside the same. This
order of the Financial Commissioner was challenged before this
Court through the writ petition, which was dismissed. The review of
this order is now being sought.
The counsel representing the petitioners sought number
of adjournments for placing on record the copies of plaint, written
statement and the judgement and decree passed and sale deeds
stated to have been executed by Smt.Malkiat Kaur. This time was
granted on 24.7.2007 but till April 15, 2009, when the order was
passed, no document had been placed on record. Despite number of
adjournments, except for sale deed, nothing was placed on record.
The case set-up before the Court was that application was filed for
obtaining these documents from the Court and in response thereto,
the petitioners were informed that due to dilapidated condition, 80-
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 3 }:
85% record has been spoiled and file could not be traced out from
the record in good condition. This application had been returned to
the petitioners. It is, thus, obvious that on the date when the case
was taken up for hearing, the petitioners and the counsel
representing them had expressed their helplessness to produce the
requisite documents/record and in this context the Court proceeded
to pass the order, review of which is now sought. The ground to seek
review is that the documents could not be placed due to
communication gap between the counsel and the petitioners and also
due to the fact that counsel was under erroneous impression that all
the four documents are to be filed together. It is stated that the
counsel had the copy of the judgment lying in his brief. Having placed
some documents on record, prayer for review is accordingly made.
The counsel, who had initially appeared for the
petitioners, is now assisting another senior counsel, Sh.Sumeet
Mahajan, who has appeared to argue the review application. It is
stated in the application that the agreement was executed directly
with Malkiat Kaur and was not executed through attorney. It is also
stated that even in the civil suit, Smt.Malkiat Kaur had been arrayed
in her own capacity and not through the power of attorney. The plea
further is that she had herself appeared and filed a written
statement. It is then stated that Smt.Malkiat Kaur was impleaded as
proforma respondent through her power of attorney by Gram
Panchayat and in this background the petitioners had impleaded
Malkiat Kaur through her attorney in the writ petition. While making
this ground to seek review, the petitioners are blissfully silent about
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 4 }:
the death of Malkiat Kaur and the date of her death.
The Gram Panchayat had challenged the order passed
by Assistant Collector dated 16.3.1998 primarily on the ground that
Malkiat Kaur was already dead. Even in the order dated 18.5.2001
passed by Assistant Collector IInd Grade, it is noticed that on
29.7.1997, an application was presented to Tehsildar by Surinder Pal
Singh (petitioner No.1) on behalf of Malkiat Kaur, seeking direction to
Halqa Patwari to enter mutation in his favour as the land had been
allotted to Malkiat Kaur by the Punjab Government. It may be noticed
that as per jamabandi for the year 1991-92, the Gram Panchayat was
recorded as owner of the land measuring 52 kanals 16 marlas in
village Hussainpura. Order of Collector would show that as per the
report of Patwari, Surinder Pal Singh, petitioner, who was the
applicant, was adamant that the said land be mutated in his favour
and he should be shown as owner in possession of the land by virtue
of Parchi allotment. At the time of mutation, Surjit Singh had
appeared as an attorney of Malkiat Kaur. It would be of interest to
notice the arguments advanced by counsel for the Gram Panchayat,
which are as under:-
“He further pleaded that as there had been no change of
possession, the mutation could not be attested, merely on
the basis of a parchi allotment, the authenticity and the
validity of which was also in question, as neither any
original allotment order had been placed on record nor
there was any number of issue on the parchi allotment, as
per the photostat copy produced by the respondent. Even
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 5 }:
if the photostat copy of the allotment is to be believed, the
allottee did not come forward at present or at any
previous appropriate time to stake claim for taking the
possession of the said land. This can only lead to the
presumption that the allottee is no more. Moreover, the
respondents have not produced any sale deeds said to be
executed in 1985 and Malkit Kaur has been said to be
acting through her so called attorney, Surjit Singh. While
presenting a photostat copy of the rule 4(v) of the Punjab
Package Deal Properties (Disposal) Rules, 1976, the ld.
Counsel further stated that this sale was infact void in the
eyes of law as the original allottee could not resell the
land allotted to her, as the allottees, who are war widows
cannot resell the land for 10 years after allotment under
the provisions of the said rule. Rule 4(v) states that “No
allottee shall be permitted to sell or alienate in any
manner, the land allotted to him or her, before the expiry
of a period of ten years, even if the full price has been
paid.” In view of the said provision of the law, the
allotment, even if the same is to be believed to be true, is
liable to be cancelled and as such, the property cannot be
said to be transferred in the name of the respondents.”
The counsel further pleaded:-
“…….the respondents are the persons who have been
getting such type of allotments made by using their
influence and then they have been creating false power of
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 6 }:
attorney’s in their favour with the intention of usurping
public property in the garb of fictitious land claims created
by fabrication of documents. The ld. Counsel also
produced a copy of the order dated 2.6.2000 of the court
of the learned Civil Judge (J.D.), Ludhiana, in the case of
Gurinder Pal Singh Vs. Avtar Singh, pertaining to the
same land. After discussing the situation arising out of the
attestation of the mutation Nos.276 and 278 (under
challenge in this appeal), it has been held by the ld. Civil
Judge (J.D.) that the said land is under the ownership of
Gram Panchayat, Hussainpura. (a copy of the order has
been placed on the file).”
On the other hand the counsel appearing for Surjit Singh,
so called attorney of Malkiat Kaur, conceded that there had been no
change of possession as the previous cultivators of the land were
cultivating the land and paying rent to the Gram Panchayat. Still it
was submitted that mutation was rightly sanctioned by Assistant
Collector IInd Grade on the basis of a Government letter/parchi
allotment, though there had been no transfer of possession. The
counsel was asked to produce Malkiat Kaur in the Court but he could
not give any convincing answer. They were even asked to produce
original copy of the general power of attorney of Malkiat Kaur, which
was not produced. They also could not tell if the allottee could sell
this land within a period of 10 years in view of Rule 4(v) the Punjab
Package Deal Properties (Disposal) Rules, 1976.
It is, thus, clear that Malkiat Kaur was not available during
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 7 }:those proceedings. They had prayed for adjourning the proceedings
sine-die before the Collector on the ground that the respondents had
filed suit for declaration before the civil Court. These telltale signs
available on record were enough to put doubt even on the sale deed
or other documents referred to or relied upon in the writ petition while
challenging the order passed by the Financial Commissioner. None
of the documents which are now being produced were available on
record. The date of death of Malkiat Kaur is also not being disclosed.
That will be crucial and material. In any case, Malkiat Kaur was not in
this world during the mutation proceedings which were the subject
matter of challenge through the writ petition. To seek review in this
background, is not within the scope of the provisions of Section 114
read with Order 47 Rule 1. The review of the order can not be sought
on the basis of documents which were not placed on the record at
the time of passing of the order.
This review petition is not only misconceived but seems to
be another aim to usurp the Gram Panchayat’s land by those
unscrupulous elements, who seems to be indulging and acting on
behalf of the claimants in getting belated allotment of claims posing
as partially unsatisfied as is noticed in the order passed by the
Financial Commissioner. The learned Senior counsel, who has now
been brought in to argue the review petition, should have gone
through the impugned order, whereby the counsel representing the
petitioners at the time of arguing the writ petition, could not answer
when asked as to why he could not produce the plaint and judgment
from his record as he must have obtained a copy of the judgment for
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 8 }:getting the sale deed executed through the Court. Now from where
the documents have come into existence is really not made out. The
story set up to seek review of the order seems to be made up. Not
only that these documents were not produced with the writ petition
despite the case having been adjourned for more than 2 years but
none of these documents were produced before the authorities like
Assistant Collector, Collector, Commissioner and Financial
Commissioner. The part of the order passed by Collector and
reproduced above would show that mutation was being sought on the
basis of parchi allotment, not by Malkiat Kaur but by her attorney.
Original allotment was not on record and only photostat copy of
parchi was produced. The sale deed now placed on record was not
produced before the Collector. May be this was to circumvent the
objection that Malkiat Kaur could not sell the land allotted within 10
years or that she was not available and so attorney was made to
stand on her place. The sale in favour of the petitioners even is not
valid. The Collector had even drawn a presumption that the allottee is
no more. Less said is better in regard to the conduct of attorney.
These documents, which were not produced before the authorities
below, can not be permitted to be placed on record. It is sought to be
done. Collector asked the petitioners to produce Malkiat Kaur but
they could not do so. If sale deed is the basis of claim by the
petitioners, then it is not understood as to why they were relying upon
parchi allotment before Collector. Everything is fishy. In any event,
the reasons on which the review is sought, would not fall within the
scope of review.
R.A.NO.237 OF 2009 IN C.W.P. NO.8960 OF 2007 :{ 9 }:The review application is accordingly dismissed with costs
which are assessed at Rs.10,000/- to be deposited in the account of
Legal Service Authority, Punjab.
July 24, 2009 ( RANJIT SINGH ) khurmi JUDGE